Will the sky fall now that Prop 12 has passed?

I've previously blogged at considerable length (including in several long comments) about why I intended to vote for Prop 12 in yesterday's statewide vote on several constitutional amendments.  Yes, I voted "for," as I had planned.

As I write this, the Texas Secretary of State's office is reporting that with 98.61% of the votes counted, it appears that Prop 12 will pass by a razor-thin margin with just under 51% of the vote.

So let's say you were one of the people who voted against Prop 12 for whatever reason.  How bothered should you be?  Let me put that question to you slightly differently: 

How bothered were you by the condition of Texas constitutional law regarding non-economic damages in 1987?  Did you lose any sleep back then? 

All that Prop 12 has done, folks, is return Texas constitutional law to where it stood before an outrageous decision by the Texas Supreme Court in 1988 called Lucas v. Unites States, 757 S.W.2d 687 (Tex. 1988), which declared unconstitutional some of the first legislative efforts at medical malpractice tort reform in 1977.  Chief Justice Tom Phillips wrote an eloquent, exhaustive dissent from that decision that he concluded with these words:

In declaring the [Legislature's 1977] medical malpractice caps unconstitutional, I believe the court has substituted its own policy judgment for that of the people acting through their duly elected representatives. The court has struck down a carefully crafted legislative response to a major social problem for no better reason than that it finds the scheme distasteful. Whether the malpractice caps are good social policy or not, I do not find them to be unconstitutional.

Now, as it happens, I know Chief Justice Phillips.  I had the privilege of taking over some of his docket at Baker Botts when then-Gov. Bill Clements first appointed him to the Harris County District Court bench in 1981.  I later appeared before him in a case that had my all-time favorite case-name, The Who v. John Doe (which probably should be the subject of a future blog, eh?).  Justice Phillips is a Republican, yes — but he's also a graduate of that national bastion of liberalism, Harvard Law School; a recent President of the National Conference of Chief Justices; and nobody's wild-eyed right-wing nut.  In 1988 he was still in the minority on a power-drunk, pro-plaintiff Texas Supreme Court that was an embarrassment to this state in the eyes of the entire nation — and that reputation came from cases like Lucas.

Prop 12 amounts to the citizens of Texas saying that Chief Justice Phillips was right.  It just cleaned up the load of manure Justice Kilgarlin had left behind in the Lucas opinion.  It just means that the Legislature can once again do what we elect our legislators to do — that is, to try to solve problems. 

In the last regular session of the Legislature, our legislators perceived that there's a problem, an imbalance, in the civil law system as it affects doctors and health-care providers.  And so they passed, and the governor signed, a tort reform statute that contains some caps on non-economic damage awards in personal injury lawsuits to try to fix the problem. 

Will it?  Well, I dunno, and neither do the members of the Legislature or Gov. Perry — and neither does anyone else who's been filling up your TV screen and mailbox and phone answering machine with Prop 12 propaganda, pro or con, for the last several weeks.

But now we'll see.  We'll try living under it a while, and we'll see whether the statute works as planned.  Or not.  If it doesn't — if it goes too far, and there are conspicuous examples in which the public is horrified because someone has only gotten  $750,000 for pain and suffering (plus his or her past and future economic damages like lost wages and medical expenses) — then a future session of the Legislature can make an appropriate adjustment.  Or if it doesn't help solve the problem as intended, then the Legislature can ditch it and try something else instead.  That's what we elect them to do.

All that Prop 12 has done is to put power back into the Legislature's hands that everyone always assumed was there before the 1988 decision in Lucas.  Unless you lost a great deal of sleep worrying about this in 1987, I suggest that you need not lose a lot of sleep worrying about this in 2003 either.